BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1A) of the Broadcasting Act 1989
Nightline – item reported shooting of a police officer in Papatoetoe – stated which street the incident occurred in and showed a driveway cordoned off – letterbox number visible – reporter spoke to two neighbours – allegedly in breach of privacy

Findings
Standard 3 (privacy) – no identifiable individuals – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on Nightline, broadcast on TV3 at 10.30pm on Tuesday 22 December 2009 reported that a policeman had been shot three times while investigating a car in a driveway. The Nightline reporter stated that two men had been questioned by police, and that “residents of [street and suburb where the incident occurred] had some questions of their own”. Two residents were shown commenting on the incident.

[2]   The reporter then said that police had recovered three firearms from the scene, while viewers were shown a shot of a driveway cordoned off, with its letterbox number visible. The item concluded with the reporter stating that a 28-year-old man had been charged with attempted murder.

Referral to the Authority

[3]   Antony Nyhane lodged a direct privacy complaint with the Authority under section 8(1A) of the Broadcasting Act 1989.

[4]   Referring to the Authority’s privacy principles 1, 2 and 4, Mr Nyhane said that the item had showed the address of the “victim”, including the letterbox number, “putting residents at risk”. He alleged that the item showed residents who lived in the street talking to police, and that “this person has name suppression and TV3 has put this person at risk from retaliation as he is easily identifiable, now they have disclosed his face and address”.

Standards

[5]   Standard 3 of the Free-to-Air Television Code of Broadcasting Practice and principles 1, 2 and 4 of the Authority’s Privacy Principles are relevant to the determination of this complaint. These provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.           

Privacy principles

1. It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

2. It is inconsistent with an individual’s privacy to allow the public disclosure of some kinds of public facts. The ‘public’ facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of public facts will have to be highly offensive to an objective reasonable person.

4. The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

Broadcaster’s Response to the Authority

[6]   TVWorks maintained that no private facts were disclosed in the item. It said that the address at which the policeman was shot was a matter of public record and that the residents who spoke to the reporter did so willingly. Although it was not a matter of broadcasting standards, TVWorks said, it was not aware of any suppression orders regarding disclosure of any of the information contained in the report. It noted that the complainant had not provided any evidence that relevant suppression orders were made or in place at the time the item was broadcast. TVWorks declined to uphold the privacy complaint.

Authority’s Request

[7]   The Authority asked Mr Nyhane to clarify whose privacy he believed had been breached. He stated that he was referring to “the person that was living in the sleep-out where the policeman was shot”.

Authority's Determination

[8]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[9]   The Authority notes that Mr Nyhane nominated privacy principles 1, 2 and 4 in his complaint. It has stated on a number of occasions that privacy principle 4 was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of that person by members of the public (see, for example, De Villiers and TVNZ,¹ South Pacific Pictures Ltd and TVWorks²). In this case, while the number on the letterbox was visible and therefore a small number of viewers may have made the connection between the address shown and the person or people who lived there, this did not  amount to a disclosure for the purposes of encouraging harassment, as contemplated under privacy principle 4.

[10]   Privacy principle 2 relates to the disclosure of “public” facts such as criminal behaviour which may have become private, for example through the passage of time. The Authority has usually considered this principle in relation to an individual’s previous convictions.³ As the item complained about focused on an incident that occurred the previous evening and did not reveal any other details about the man who was arrested, the Authority considers that this principle is not relevant in the circumstances.

[11]   Accordingly, in the Authority's view, Mr Nyhane’s complaint is appropriately addressed under privacy principle 1, which states:

It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[12]   When the Authority considers a privacy complaint, it must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As the person who shot the policeman was not named or shown in the item, the Authority finds that he was not identifiable. Nor was “the person living in the sleep-out” identifiable, whether or not that was the same individual.

[13]   Accordingly, the Authority concludes that no private facts were disclosed about an identifiable individual in breach of their privacy, and it declines to uphold the Standard 3 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
23 March 2010

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.           Antony Nyhane’s direct privacy complaint – 10 January 2010
2.          TVWorks’ response to the Authority – 22 January 2010
3.          Mr Nyhane’s response to Authority’s request – 25 February 2010

¹Decision No. 2008-089

²Decision No. 2008-017

³See, for example, Reekie and TVNZ, Decision No. 2009-026; Arthur and TVNZ, Decision No. 2006-115